Last Updated on May 24, 2022 by Fair Punishment Team
It is illegal to refuse to take a blood alcohol test if stopped by a police officer who has reason to suspect that you are driving under the influence. You might not agree with this statement, but it is still true and can land you in a lot of trouble.
This is true in all 50 states. But what law are you actually breaking by refusing the breath test when being stopped in Texas? We’ll find out below.
The implied consent law
In Texas, there is a controversial law called Implied Consent. If you are arrested by an officer who believes that you are driving under the influence, you automatically consent to testing of the blood and breath to see if you were, in fact, intoxicated.
This means that once you have been lawfully arrested with just cause, you are all but forced into taking these tests to prove your innocence.
It is worth noting that officers cannot actually force you into completing the test. The only exception to this is if you have caused an incident that has injured another party or killed them.
However, if you decline the test you will be violating the implied consent law which can be found in the Texas Transportation Code. The police officers can still charge you with a DWI despite not taking the tests. They will then move onto other ways of proving your guilt.
What happens if you violate the implied consent law?
Not only will you still be under investigation for a DWI, but you’ll also be subject to penalties for refusing the blood alcohol tests. Your driving license will be suspended and you will be given a temporary driving permit instead.
After 40 days have passed since your arrest, you will have your license suspended for 180 days unless you demand a hearing.
If this is your second DWI offence and you refuse to take the blood alcohol test again, you will be given a 2-year driving suspension.
Why would you refuse the blood alcohol tests?
Doesn’t this sound like a lot of work that could’ve been avoided if the blood alcohol test was just simply taken? Many police officers will assume that you are guilty of driving under the influence if you refuse the breath or blood test.
This is why they will look for new ways to prove that you are guilty and charge you with a DWI regardless. So, if you are innocent of driving under the influence, it is always better to take the test.
Even if you are driving under the influence and know that you will fail the blood alcohol test, taking the breath or blood test and failing it might lead to less severe consequences than refusal. After all, you will be being charged with a DWI if you fail the test or refuse it, so there’s no way you can get out of it unless you’re under the legal driving limit.
Knowing your rights
Despite the implied consent law that Texas holds, you still have a right to refuse to take a breath or blood test. This is under the Fourth Amendment of the United States Constitution.
Having said this, there have been a number of reported cases in which defendants have been forced to take blood alcohol tests in recent years, despite having initially refused them. This means that they were taken against their will.
While this is a breach of their rights, these cases have recently pushed the case to the US Supreme Court, with them ruling that the dismissal of the offenders refusal seemed to remove their human rights.
The court therefore ruled that police or state troopers would first require a search warrant before being able to carry out a blood alcohol test on possible offenders. However, the court also ruled that the officer would be within their rights to make it a crime for the driver suspected of being under the influence to refuse the breath test.
This means that while you are now able to refuse a blood alcohol test without the worry of the officer or trooper forcing you into it, refusal can also be seen as a crime and they are within their rights to arrest you and take you to the station.
When can you not refuse to take a blood alcohol test?
There are some select scenarios when your right to refuse the blood alcohol test is removed. In these select cases, the police officer is able to take a sample without your consent.
Most times when they believe that you were a danger to other members of the public due to your driving while intoxicated, they are not able to take your sample without your consent. This is true unless one of the following circumstances can be applied to your situation:
- You have a previous conviction of driving under the influence with a child in your vehicle. The child needs to be 14 years old or younger for this circumstance to apply.
- If you have had a previous incident involving driving under the influence where one or more people needed to be taken to the hospital on account of serious injury or death.
- If you have had more than two previous driving under the influence convictions.
- You have had over one previous assault or manslaughter conviction while under the influence of alcohol.
In these cases, you are not required to give your consent for a blood alcohol test to be taken.
As you can see, the consequences for refusing a blood alcohol test in Texas can be particularly harrowing. You will be breaking the implied consent law which, while is a questionable law itself, comes with some strong repercussions that you’ll need to be ready to face.
It is possible for you to refuse a BAC test, except for some unique circumstances, although you will be breaking the law and you will be treated like such.